Grand Lodge Colored K. P. of Texas v. Cleo Lodge, No. 222, Colored K. P.

• Decision Date: 08 November 1916
• Docket Number: (No. 5709.)
• Citation: 189 S.W. 764
• Parties: GRAND LODGE COLORED K. P. OF TEXAS v. CLEO LODGE, NO. 222, COLORED K. P.
• Court: Texas Court of Appeals

189 S.W. 764

GRAND LODGE COLORED K. P. OF TEXAS v. CLEO LODGE, NO. 222, COLORED K. P.

(No. 5709.)

Court of Civil Appeals of Texas. San Antonio.

November 8, 1916.

Rehearing Denied December 6, 1916.

Error from Aransas County Court; Roy Jackson, Judge.

Suit by Cleo Lodge, No. 222, Colored Knights of Pythias, against Grand Lodge Colored Knights of Pythias of Texas. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

S. J. Williamson, of Palestine, and Kleberg, Stayton & Picton, of Corpus Christi, for plaintiff in error. W. H. Baldwin and E. A. Stevens, both of Rockport, for defendant in error.

SWEARINGEN, J.

Defendant in error filed suit on August 25, 1915, against plaintiff in error, upon a death certificate issued by plaintiff in error to Isaac Martin, deceased, who was a member of defendant in error, which was a local lodge of plaintiff in error.

Plaintiff in error answered October 4, 1915, the day before appearance day, that it was liable for the $500 certificate sued upon, and paid the $500 into court; stated why it owed the money; that it had no personal interest in the fund, but another party did claim an interest in the fund antagonistic to the claim of defendant in error; stated the name of the party claiming the antagonistic interest; and stated the nature of the adverse claim and the facts upon which the adverse claim was based, and showed the real question to be tried between the claimants.

On the 5th day of October 1915, which was the appearance day on which plaintiff in error had been cited to appear and answer, the court ignored the motion of plaintiff in error contained in plaintiff in error's bill of interpleader, that Ida Cavenno be required to interplead with defendant in error for the fund, and rendered judgment against plaintiff in error for the fund, less an attorney's fee allowed out of the fund to plaintiff in error.

Plaintiff in error, by the first assignment of error, complains that the court erred in not making Ida Cavenno a party to the suit and in not having her cited to appear and answer.

The answer of plaintiff in error set up a good and sufficient bill of interpleader. Story, Eq. Pl. (10th Ed.) § 291 et seq. and notes.

A bill of interpleader is recognized as proper pleading in Texas. Nixon v. N. Y. Life Ins. Co., 100 Tex. 250, 98 S. W. 380, 99 S. W. 403; Rochelle v. Pacific Express Co., 56 Tex. Civ. App. 142, 120 S. W. 543.

Upon the facts averred in plaintiff in error's answer, it was the duty of the trial court to determine that Ida Cavenno should interplead and enter an order requiring her to answer. Then, after she had been brought into court by proper process, the issue of claim to the fund should have been determined between Ida Cavenno and defendant in error after which final judgment should have been rendered for one or the other, and judgment should have been rendered, dismissing plaintiff in error with reasonable attorney's fees and costs to be deducted from the fund paid in.

As quoted in Roselle v. Farmers' Bank, 119 Mo. 84, 24 S. W. 744:

"An interpleading suit involves two successive litigations; one between the plaintiff (in the bill) and the defendants upon the question whether the defendants shall interplead; the other between the different defendants, i. e., the interpleading itself. The subjects of these two litigations...